Guidance Note AGN 520.1

Transcription

1 Guidance Note AGN Fit and Proper Requirements Definition of a responsible person 1. The definitions of responsible persons cover those persons whose conduct is most likely to have significant implications for the sound and prudent management of an authorised deposit-taking institution (ADI) or authorised non-operating holding company (authorised NOHC) under the Banking Act 1959 (the Act). The actual nature of the role and the functions fulfilled by a position must be considered to determine if it is a responsible person position, rather than merely the title of the position. 2. In general terms APRA envisages that, for ADIs that are not foreign ADIs as defined in the Act (foreign ADIs) and authorised NOHCs and for their material subsidiaries as defined in APS 520 Fit and Proper Requirements, senior managers will include, and not generally extend greatly beyond, managers reporting directly to the Chief Executive as well as the managers responsible for key aspects of risk management. If an ADI or authorised NOHC (regulated institution) is unsure if a particular manager s responsibilities are senior management responsibilities as defined, it should seek further guidance from APRA. Fit and Proper policy 3. APRA requires that regulated institutions take certain steps to ensure that responsible persons are fit and proper. Regulated institutions must also ensure that each of their material subsidiaries as defined at paragraph 2 of APS 520 Fit and Proper Requirements take certain steps to ensure the subsidiary s responsible persons are fit and proper. This is because the actions of, and decisions made by, each responsible person are likely to have significant implications for the sound and prudent management of a regulated institution. Fitness and propriety must be considered for the functions and duties to be undertaken by the responsible person that involve any relevant activities referred to at subparagraph 5(a) to (d) inclusive of APS 520 Fit and Proper Requirements (responsible person position). AGN

2 4. A regulated institution and its material subsidiaries will need to exercise prudent judgement in ensuring the fitness and propriety of its responsible persons. This reflects the importance both to depositors and to the financial system of the continued ability of an ADI to meet depositors claims and the importance of confidence in the banking market more generally. Assuming a degree of risk that a person may not be fit and proper that might be regarded as reasonable for non-prudentially regulated businesses may not be consistent with the higher standards expected of regulated institutions and their material subsidiaries. 5. APRA suggests that the Fit and Proper Policy be used as a guide in developing policies concerning the fitness and propriety of other persons employed or retained by a regulated institution and its subsidiaries. APRA recognises that not all of the matters relating to fitness and propriety at paragraph 8 will be relevant for all other persons employed or retained by a regulated institution or its subsidiaries. Criteria to determine if a responsible person is fit and proper 6. The skills and experience required by each responsible person will depend on that person s role and this will be affected by the role undertaken by other responsible persons. For example, a director will need to have certain skills and experience that are necessary for the Board of directors (Board) of the regulated institution or material subsidiary to fulfil its role and functions. Each director will need at least to understand the role of a director and have a general knowledge of the institution, its business and its regulatory environment. However, each director will not need to have all the competencies that the Board collectively needs if other directors have those competencies. 7. If a person is unfit for a particular responsible person position because of lack of competence for that position or because of a conflict of interest that applies to their duties in that position, they may be fit and proper for another responsible person position. However, where a person is found to be not fit and proper due to a lack of character, diligence, honesty, integrity or judgement, it will normally be the case that the person will not be suitable for any responsible person position. 8. APRA expects the Fit and Proper Policy to require the regulated institution or material subsidiary to consider the extent and nature of a number of matters when relevant in assessing the fitness and propriety of a person for a responsible person position and any person responsible for the assessment is aware of the matter. APRA expects that that the matters will include, when relevant, whether the person: (a) is unable to demonstrate they are competent for the position, by reference to attributes such as educational and technical qualifications, completion of any training or induction processes required for the position, knowledge, skills and experience as well as their performance in positions with the institution or the subsidiary or otherwise relevant to the position in question; AGN

3 (b) (c) failed to discharge their responsibilities as a director or manager of, or a professional service provider to, a body corporate, statutory body, partnership, trust, or commercial or professional enterprise of any kind (entity) with diligence, honesty, integrity or judgement; was the subject of justifiable criticism, discipline, punishment, adverse findings, directions or orders, by a court, tribunal, official inquiry, regulatory agency, complaints handling body, dispute resolution body, or professional or industry body concerning the person s conduct in relation to: (i) (ii) the management of an entity; or commercial or professional activities; (d) was the subject of civil or criminal proceedings, or enforcement action, in relation to: (i) (ii) the management of an entity; or commercial or professional activities; that were determined adversely to the person (including by the person consenting to an order or direction, or giving an undertaking, not to engage in unlawful or improper conduct), and which reflected adversely on their competence, character, diligence, honesty, integrity or judgement; (e) (f) was expelled or excluded from, or refused admission to, a professional or industry body, or a clearing house or exchange; was involved with the affairs of an entity that was expelled or excluded from, or refused admission to, a professional or industry body, or a clearing house or exchange, and the person engaged in conduct which caused or contributed to the entity s expulsion, exclusion or nonadmission; (g) was refused a licence or authorisation relating to a commercial or professional activity, or had such a licence or authorisation revoked; (h) (i) was involved with the affairs of an entity that was refused a licence or authorisation relating to a commercial or professional activity, or had such a licence or authorisation revoked, and the person engaged in conduct that caused or contributed to the refusal or revocation of the licence or authorisation; had their appointment terminated, or resigned or was asked to resign, from a position as director or manager of, or professional service provider to, an entity in circumstances which reflected adversely on their competence, character, diligence, honesty, integrity or judgement in discharging their responsibilities in the position; AGN

4 (j) (k) seriously or persistently failed to manage their debts or financial affairs in accordance with their contractual or other legal obligations in circumstances where such failure caused loss to others; was, or acted as, a director or manager of, or professional advisor to, an entity that: (i) (ii) was, or later came to be, insolvent; was, or later came to be, under insolvency administration; (iii) was, or later came to be, under statutory or judicial management; or (iv) failed to repay, or otherwise failed to meet its financial obligations to, creditors or beneficiaries, and engaged in unreasonable or unlawful conduct that caused or contributed to the insolvency, placement under insolvency administration or statutory or judicial management, or failure to repay or otherwise meet obligations to creditors or beneficiaries; (l) contravened any regulatory requirement or professional standard relating to: (i) (ii) the management of an entity; or commercial or professional activities; (m) was unreasonably or improperly obstructive of, or was misleading or untruthful in dealing with, a court, tribunal, official inquiry, regulator, complaints handling body, dispute resolution body, or professional or industry body; (n) breached a fiduciary obligation or other legal or professional obligation involving trust or conflict of interest or perpetrated or participated in negligent, deceitful or otherwise discreditable business or professional practices; or (o) failed to comply with a fit and proper policy of an APRA-regulated institution. 9. Each person responsible for the assessment will need to consider overseas conduct and events of which the person is aware as well as conduct and events in Australia when relevant. 10. If APRA disqualifies a person from acting as a director or senior manager in any other industry regulated by APRA, the person s fitness and propriety will need to be immediately reassessed. This also applies to any disqualification by ASIC or under the Corporations Act 2001 of the person from being a director of a AGN

5 company. It also applies to any similar actions by foreign prudential regulators or regulators of corporations or conduct in the provision of financial services. Decision standards for fitness and propriety considerations 11. A regulated institution and its material subsidiaries will need to apply prudent judgement in determining whether the materiality, elapsed time, and, when relevant, any repetition or duration of circumstances means that the person could not safely be considered fit and proper at the time of the assessment and into the future. APRA does not expect a regulated institution or its material subsidiaries to bar or remove a person from a responsible person position just because one of the matters at paragraph 8 has occurred. Some of the matters may in some circumstances not be relevant to that assessment. Even if a matter is relevant, the regulated institution or the relevant material subsidiary will need to reasonably assess materiality. There may also be other matters not set out at paragraph 8 that may be relevant to an assessment of whether a person is fit and proper for a responsible person position. Additional criteria for auditors 12. The additional criteria reflect the importance of the auditor s role in preparing reports required for APRA s prudential purposes, and the need to ensure independence including by avoiding potential conflicts of interest. Process for assessment of fitness and propriety 13. The Fit and Proper Policy may provide that the regulated institution or material subsidiary will require candidates for responsible person positions to provide attestations relating to some or all of the matters specified at paragraph 8. For example, a statutory declaration by the candidate may be required. For an auditor that is a responsible person, written representations may be required from any firm of which the auditor is a member. 14. A regulated institution or material subsidiary need not make enquiries about a matter in paragraph 8 if the matter is so unlikely to be material to an assessment that requiring disclosure by a responsible person or undertaking other enquiries would be unreasonable. For example, it may not be necessary to require attestations from every responsible person or to make other enquiries relating to such matters as failures to meet obligations in relation to personal debts more than 10 years previously. An institution and its material subsidiaries are required to take a prudent approach when formulating the Fit and Proper Policy but will need to weigh the burden of documenting information and the risk of unnecessary disclosure of personal information with the possibility that such information might be material. 15. Attestations and representations described in paragraph 13 covering all the matters in paragraph 8 about which enquiry is prudent may generally be sufficient in the case of an annual review. This applies if a person responsible for making the assessment has not become aware of any material matter that the AGN

6 regulated institution or relevant material subsidiary has not considered in making a prior assessment. 16. For a new appointment to a responsible person position, attestations or representations of the kind described in paragraph 13 will assist in satisfying the requirements of paragraph 27 of APS 520 Fit and Proper Requirements to make sufficient enquiries. APRA does not expect that attestations or representations will be sufficient enquiry for the full range of matters that require consideration when a person is first considered for appointment as a responsible person of the regulated institution or material subsidiary. APRA expects an institution and its material subsidiaries to make all prudent enquiries including, at a minimum, Australian criminal record checks (which will require the person s consent), as well as appropriate evidence of qualifications that are material to an assessment of a responsible person s competency. 17. APRA expects that the Fit and Proper Policy will provide for fit and proper assessments of persons identified in accordance with the regulated institution s or material subsidiary s succession plan as those who may become holders of responsible person positions. The assessment should be made of whether the person would be fit and proper for the position to which they may be appointed under the succession plan. APRA expects that, to the extent prudent, such assessments will occur when the person is identified as a person who may be appropriate to fill a responsible person position (for succession planning purposes), rather than only when it is certain that they are to be appointed to the position. APRA recognises that a person may be required, in limited circumstances, to fill a responsible person position on an interim basis, when it would have been unreasonable to conduct a fit and proper assessment of the kind that would be appropriate for such an appointment under normal circumstances. Under those limited circumstances, certain checks are still reasonable, such as obtaining reliable information from appropriate referees. 18. Making prudent enquiries will generally include giving a responsible person a fair opportunity to put matters to the regulated institution or relevant material subsidiary when an institution or relevant material subsidiary becomes aware of information that could change an assessment that the responsible person is fit and proper. 19. When there is an annual performance review for a responsible person by the regulated person or its material subsidiary, this is likely to be the appropriate process to assess the person s competency for the responsible person position. The timetable for any attestations and representations to enable the annual assessment of the responsible person s competency should coincide, if practicable, with the annual performance review if that is when competency is assessed. If information that may indicate a person is not fit and proper becomes known to the institution or material subsidiary during the year, it will require enquiries and, if appropriate, an assessment to be conducted under APS 520 Fit and Proper Requirements without waiting on the annual review timetable. AGN

7 20. A regulated institution and its material subsidiaries should ensure that each responsible person and each candidate for appointment as a responsible person is made aware that information will be collected about them, including by employees of the institution and its material subsidiaries, and the purposes and ways it which the information may be used and disclosed. This will help to ensure compliance with the National Privacy Principles 1.3 and 1.5 in Schedule 1 of the Privacy Act APS 520 Fit and Proper Requirements requires the use of information that the regulated institution has for other purposes in assessing fitness and propriety when relevant. The Privacy Act 1988 includes exemptions from the National Privacy Principles for conduct required by law such as the requirement of the Act to comply with prudential standards. Since APS 520 Fit and Proper Requirements does not directly impose requirements on material subsidiaries, APRA recognises that the obligations on the regulated institution to ensure that its material subsidiaries comply with APS 520 Fit and Proper Requirements only apply to the extent that compliance would be lawful. 22. APRA expects that to ensure that responsible persons comply with requirements applying to them in the Fit and Proper Policy, the Fit and Proper policy will require regulated institutions and their material subsidiaries to put in place appropriate contractual or other relationships with them under which they are: (a) to provide any assistance that the regulated institution or material subsidiary needs to encourage disclosures in accordance with the Fit and Proper Policy or APS 520 Fit and Proper Requirements including giving consents and taking steps to ensure that any person making those disclosures in good faith will not be liable; and (c) not to seek damages or any other remedy from the regulated institution or material subsidiary for implementing the Fit and Proper Policy or seeking to do so in good faith. 23. It may be necessary to amend the constitution of the regulated institution or its material subsidiary to ensure directors takes office under terms that enable the regulated institution to ensure their compliance. APRA does not require a regulated institution to convene a meeting of its members only to consider such an amendment. 24. A regulated institution must comply with the Fit and Proper Policy in all respects even if it would breach a contract or contravene another law (other than a law of the Commonwealth) even if the regulated institution or its material subsidiaries do not have contractual relationships in place. When a responsible person is not fit and proper 25. The steps that a regulated institution and its material subsidiaries may prudently be able to take to ensure that a person is not appointed to, or for an existing AGN

8 responsible person, does not continue to hold, a responsible person position for which they are considered not fit and proper include: (a) (b) (c) not appointing the person at all or terminating the engagement of the person in the position for which they are not fit and proper; redefining the position either indefinitely, or temporarily, pending further inquiries by the institution or material subsidiary or the person receiving further training or experience, so that the person is fit and proper for the position; or if there are no effective steps prudently available to the institution or material subsidiary to ensure that outcome, taking steps to facilitate APRA independently considering the person s fitness and propriety for the position and, if APRA thinks fit and the power arises, removing the person from the position or disqualifying the person from being a responsible person. This is in addition to the institution s obligations to notify or ensure that its material subsidiary notifies APRA of information under APS 520 Fit and Proper Requirements. APRA s powers 26. APRA has powers under the Act to: (a) remove an ADI s auditor; 1 (b) (c) (d) (e) direct a locally incorporated ADI or an authorised NOHC to remove a director or senior manager; 2 direct a foreign ADI to remove a senior manager of its Australian operations; 3 disqualify a person from being, or acting as, a director or senior manager of a locally incorporated ADI or authorised NOHC, or a senior manager of the Australian operations of a foreign ADI, if APRA is satisfied that they are not fit and proper that role; 4 direct a regulated institution to remove any officer, employee or auditor or ensure that any subsidiary of the regulated institution does so if APS 520 Fit and Proper Requirements has not been complied with APRA may give a direction referred to at paragraph 23(b) or (c) if APRA finds that the person: 1 Refer section 17 of the Act. 2 Refer section 23 of Act. 3 Refer section 23 of Act. 4 Refer section 21 of the Act. 5 Refer section 11CA of the Act AGN

9 (a) is a disqualified person under the Act; 6 or (b) does not meet one or more of the criteria for fitness and propriety at paragraph of APS 520 Fit and Proper Requirements APRA may remove an ADI s auditor when APRA finds that the person: (a) has failed to perform adequately and properly the functions and duties of auditor; or (b) does not meet one or more of the criteria for fitness and propriety in paragraph 16 and 19 of APS 520 Fit and Proper Requirements. 29. A person is also automatically disqualified in certain circumstances, as set out under section 20 of the Act, from being a director or senior manager of a locally incorporated ADI or authorised NOHC or a senior manager of the Australian operations of a foreign ADI. 30. A regulated institution is not excused from meeting its obligations under APS 520 Fit and Proper Requirements on the basis that APRA has powers to effect the removal or disqualification of certain responsible persons. APRA expects that, ordinarily, the institution will take the action needed so that only a person who is fit and proper for a responsible person position acts in that position. 31. APRA s powers apply independently of a regulated institution s powers and duties when a responsible person is not fit and proper. APRA is not required to wait until a regulated institution or its material subsidiary has considered whether a responsible person is fit and proper before exercising its powers. However, APRA will not act to remove a responsible person until the institution or subsidiary has had sufficient time to complete its consideration and decided on what action to take, unless exceptional circumstances demand prior action by APRA. If an institution or material subsidiary does not remove a person from a responsible person position whom APRA considers is not fit and proper, APRA will exercise its powers to effect the removal as appropriate. For example, APRA may use its powers if an institution faces difficulties in removing a director who is not fit and proper to be a director through the processes required to remove a director. 32. When assessing whether a person who holds a responsible person position is fit and proper for that position, APRA will consider, among other matters, the matters listed at paragraph 8 to the extent that they are relevant. APRA will consider their relevance having regard to their nature and extent and other information about the responsible person and the responsible person position concerned. APRA will also consider, among other matters, the matters at paragraph 8 when considering whether to disqualify a person from holding certain responsible person positions for any regulated institution to the extent 6 Refer section 25 of the Act. 7 Refer section 27 of the Act. AGN

10 that the matters are relevant to whether a person is not fit and proper for those responsible person positions with regulated institutions generally. 33. It is not necessary for a person to be a past, current or immediately prospective responsible person for APRA to consider that person s fitness and propriety. In some circumstances, notably after the failure of a regulated institution, APRA will need to identify persons who are not fit and proper in order to ensure they are not able to hold responsible person positions again. 34. If a regulated institution or its material subsidiary considers that a responsible person is fit and proper for a responsible person position but APRA considers otherwise, APRA may notify the institution that if certain requirements are not satisfied, APRA may exercise its powers as set out in paragraph 26. Examples of the requirements that may apply are limits to the areas or activities in which the person can work, further training the person may be required to undertake, or specific reporting or other requirements that APRA believes are appropriate in respect of the appointment. If the requirements are not met, the institution should expect that APRA will exercise its powers. APRA also may exercise its powers without giving notification. 35. A person affected by a decision made by APRA referred to in paragraph 26(a) to (d) may request that APRA review that decision. If APRA confirms or varies the decision, or fails to revoke the decision within 21 days, the person affected by the decision may then make an application to the Administrative Appeals Tribunal. The process for reconsideration and review is set out under Part VI of the Act. Informing APRA 36. The information referred to in paragraph 41 of APS 520 Fit and Proper Requirements relates to responsible persons when the Prudential Standards commences to apply to the regulated institution. The information referred to in paragraph 42 of APS 520 Fit and Proper Requirements relates to subsequent changes. 37. The information referred to in paragraph 44 of APS 520 Fit and Proper Requirements with the regulated institution s annual report to APRA is to be provided even if merely confirms that information previously notified to APRA continues to be current. 38. The following are examples of the information that APRA may require the regulated institution to take reasonable steps to obtain and when obtained provide under paragraph 45 of APS 520 Fit and Proper Requirements or ensure its material subsidiary does so: (a) specified information and documentation on any criminal record or civil finding and any prospective criminal or civil proceedings to which the AGN

11 person may be subject (the requirement to provide this information will be in accordance with Part VIIC of the Crimes Act 1914); 8 (b) specified information from law enforcement agencies, other regulators, current and former employers of the person, professional associations and others whom APRA believes may have relevant information about the responsible person; and (c) the reasons for, and any matters stated by a responsible person as purported reasons for, the resignation, retirement or removal of the responsible person. 39. APRA may make other enquiries to enable APRA to assess the fitness and propriety of a responsible person. 40. If permitted by law, APRA may provide information it obtains about the fitness and propriety of a responsible person to a regulated institution. 8 Part VIIC of the Crimes Act 1914 places limits on the disclosure and use of information about spent convictions. Part VIIC of the Crimes Act protects from disclosure not only convictions that are spent convictions under Part VIIC, but also convictions that are spent convictions under spent convictions legislation of a State or Territory. AGN

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